National Federation for the Blind v. Lamone

Introduction

In September 2014, the U.S. District Court for the District of Maryland decided that the State of Maryland was required to make a previously used online ballot marking tool available to absentee voters who are disabled for the 2014 general election. The case is currently on appeal to the United States Court of Appeals for the Fourth Circuit.

According to the National Conference of State Legislatures, thirty-one states and the District of Columbia allow at least some voters to submit their ballots electronically. In Alaska, any voter can submit a ballot through a web-based system and Arizona allows oversees voters to do so.

Background

Maryland law allows voters to receive absentee ballots electronically, though the ballot must be printed, signed and returned to the voters' local board of election in order to be counted. The state developed an online ballot marking tool that allows absentee voters who receive their ballots electronically to use their computer to mark their ballots before printing. In order to produce the ballot for printing, the software sends the voter's votes to the Board of Election's servers, which then produces the marked ballot in PDF format. The voter must then print the ballot, sign a separate signature page and submit the ballot to their local board of election.

The online ballot marking tool was available to all voters during the 2012 primary election and to a subset of oversees voters for the general election. In 2013, the Improving Access to Voting Act was enacted into law, which required the Board of Elections to certify, by a supermajority vote, the online ballot marking tool before making it available to absentee voters. The Board did not certify the tool for use in the 2014 election.

The National Federation for the Blind and three Maryland voters with disabilities ("Plaintiffs") sued the State Administrator of the Maryland Board of Elections Linda Lamone and the members of the Board of Elections ("Defendants") for a violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Specifically, the Plaintiffs allege that "they are unable to privately and independently participate in the State's absentee ballot program."

As the case moved forward, three Maryland voters and the American Council of the Blind of Maryland, VerifiedVoting.org, and SAVEourVotes.org filed a Motion to Intervene, also under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The Intervenors, however, argued that the online ballot marking tool was not accessible to disabled voters, nor was it secure, and they requested an injunction against any future certification of the tool. The Court allowed the Intervenors to participate in the case, but denied their attempt to bring independent claims against the Defendants.

On September 4, 2014, the U.S. District Court for the District of Maryland issued an opinion ordering the Maryland Board of Elections to make the online ballot marking tool available to Plaintiffs for the 2014 Maryland General Election. In its opinion, the Court acknowledged that the online ballot marking tool did pose some security and privacy risks, but that they were not "overwhelming" and were "capable of mitigation."

Subsequently, the Maryland Attorney General filed an appeal with the Fourth Circuit Court of Appeals. Oral arguments are currently scheduled for the week of October 27, 2015.

EPIC's Interest

EPIC has a long history of working on voter privacy and vote integrity issues, which E-voting directly affects.

In April 2015, as the result of a Freedom of Information Act lawsuit, EPIC obtained a September 2011 report about online voting from the Department of Defense. The report, produced in response to EPIC's July 2014 FOIA request, summarizes a pilot test of e-voting system. The report recommends several changes, including accessibility and user interface, but does little to address privacy and security concerns except for recommending "visible security features" to "give users greater confidence in the privacy and security of their ballots." EPIC will continue to pursue the documents that have been withheld from the public about the risks of online voting.

In 2010, EPIC released an update to its "E-Deceptive Campaign Practices: Technology and Democracy 2.0" report, first published in 2008. The report reviewed the potential for abuse of Internet-based technology in the election context, and made recommendations on steps that should be taken by Election Administrators, voters, and those involved in Election Protection efforts. E-Deceptive campaigns are internet-based attempts to misdirect targeted voters regarding the voting process, and include false statements about poll place hours, election dates, voter identification rules, or voter eligibility requirements.

In 2009, EPIC recommended greater transparency on the standards development process to the Election Assistance Commission ("EAC"). The agency sought public comments on a draft of the agency's Voluntary Voting System Guidelines. In its comments, EPIC requested that the EAC follow President Obama's directive to all federal government agencies that they take affirmative steps to make their activities regarding standards development more transparent to the public, make ballot secrecy a critical component of federal voting technology standards, and maintain software independence in the next iteration of voting technology standards.

In 2008, EPIC submitted comments to the Election Assistance Commission on the proposed Voluntary Voting System Guidelines. EPIC proposed new guidance on privacy protection in the casting of ballots. EPIC also recommended more transparency for the privacy protections provided by federally certified voting systems.

Additionally, EPIC testified before the Election Assistance Commission on the 2007 Voting System Guidelines. EPIC urged the Commission to "offer clear and effective guidance to states on issues of functional capability, hardware, software, telecommunication, security, quality assurance, and configuration of voting systems."

The secrecy and the security of the vote are integral to America's voting system, and both are threatened by online voting. Cyber security experts at the National Institute of Standards and Technology have stated that "additional research and development is needed... before secure Internet voting will be feasible." In 2012, a top cybersecurity official at the Department of Homeland Security stated that "it's premature to deploy Internet voting in real elections at this time." Internet voting systems cannot be properly fully secured and create the possibility of undetectable alteration of ballots. Because of ballot secrecy, individual voters are unable to verify that their votes were properly cast. Online voting is thereby particularly susceptible to undetectable hacking and tampering.

Additionally, anonymity is a fundamental aspect of voting rights in the United States. Online voting, however, makes simultaneous audit ability and anonymity in the voting process extremely difficult to implement.

Finally, online voting requires the use of databases which are likely to include sensitive personal information, the security of which is untested and unclear.

Legal Documents

United States Court of Appeals for the Fourth Circuit (No. 14-2001)

Amicus Brief of Civil Rights Education and Enforcement Center on behalf of 28 groups in support of Appellees

VerifiedVoting.org. Web site maintained by Stanford computer science professor David Dill to provide information about the dangers of electronic voting systems and encourage activism to protect voter rights.